Journal of Free Speech Law: "The First Amendment Meets the Virtual Public Square," by Allison Stanger

A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.

The article is here; the Introduction:

On January 6, 2021, with the encouragement of President Donald Trump, a motley crew of "Stop the Steal" zealots stormed the U.S. Capitol, destroying lives and property. In response, Twitter, YouTube, and Facebook took the unprecedented step of deplatforming a freely elected U.S. president. Twitter permanently suspended Trump's account, Google's YouTube shut him down indefinitely, and Facebook closed his account but referred its decision to Facebook's newly assembled Global Oversight Board for review. Yet two years later, in January 2023, Twitter's new owner Elon Musk reinstated Trump's Twitter account, and Facebook announced the lifting of Trump's ban, without any public explanation. There was no public outcry.

At the time of Trump's social media silencing, there had been considerable public debate over whether such dramatic action had been warranted. For liberal elites, it had happened far too late. For red-state America, the very idea of censoring a freely elected president was unacceptable. Both sides of this discussion had a point but were asking the wrong questions, and in doing so, lost the plotline of the real story. Things had gone too far so that every choice at the time was a bad choice. Rather than asking if Big Tech should have silenced Donald Trump after January 6, we should instead be asking: how and why did we reach the point at which that Hobson's choice had to be made in the first place? The short answer to that question is that while the world's attention was focused elsewhere, Big Tech came to be the gatekeeper of our virtual public sphere, supplanting media institutions and national social norms, the latter of which no longer exist.

Whereas governance and civic engagement used to emerge from deliberation framed by the marketplace of ideas under the protection of the First Amendment (unless the speech incited violence), online harassment and cancel culture today, fueled by social media and framed by recommender algorithms, undermine reason-based public deliberation. For many younger people, freedom of speech has become the rallying cry of white people in red states. The Republican Party's attack on what it calls "wokeness" and its repeated calls for defending free speech feeds that perception.

While those on the extreme left and extreme right argue about their respective trampled free speech rights, they both overlook that the First Amendment protects citizens from government encroachment on freedom of speech and assembly; the First Amendment is mute on corporate suppression of free expression. If we want each and every voter to have an equal voice in public deliberation, the Constitution alone will no longer get us there.

Writing in 1968, J. C. R. Licklider, the founder of the Advanced Research Projects Agency Network, the forerunner to today's world wide web, foresaw this potential negative impact of technological change on society. "For the society, the impact will be good or bad," he predicted, "depending mainly on the question: Will 'to be on line' [sic] be a privilege or a right?" Licklider envisioned the networked world of Web 2.0, but he could not foresee that it would develop without direct government involvement. He did not foresee the ad-driven business model and its ramifications for the free marketplace of ideas.

Unfortunately, the laissez-faire approach to social media that Congress has pursued to date has allowed bad consequences to grow deep roots. Slowly, to be online with an unfettered voice is becoming a privilege rather than a right. The Trump administration repealed net neutrality, so the rich can have faster service than those who cannot afford speed. The ad-driven business model has rendered the right to privacy a luxury good, as those of lesser means give up their personal data and uninterrupted programming in exchange for free streaming services with ads and constant surveillance. The privileged pay subscription fees to imbibe their entertainment without unwanted interruptions.

Since cyberspace has become our public square, this is a deeply disturbing development, both for justice by means of democracy and democratic sustainability. This is to say nothing of equal protection before the law, an assumption on which our Constitution depends, at least theoretically. At the time of this writing, there are several cases in the Supreme Court's docket regarding freedom of speech on social media, which means that either the Supreme Court or Congress could take steps to restore public equality before the law in cyberspace or further entrench private power. To understand the challenges presently before the Court, we must first get a better idea of how we arrived at this particular juncture.

Comments

[EscherEnigma]

As long as your "public square" is actually someone's house, it necessarily cannot be a real "public square", and exists only on the good graces of the host.

If that bothers you and you want a genuine "public square"? Then current social media is insufficient, and we need something radically different.

Until then, you will always find that the internet "public square" is deficient, because it inherently, structurally, intrinsically is.

AKA: tilt at windmills more. Maybe it'll work this time.

[Michael Ejercito]

Or the "public square" could be deemed a public accomodation.

[EscherEnigma]

You want to curtail the ability of Truth Social to censor anti-Trump posts on the theory that it's a public accommodation?

Bold. Tell me more.

[Michael P]

News flash from, oh, 2000 years ago or so: businesses and other places soliciting public custom exist under different rules than “someone’s house”.

[apedad]

You're really saying that?!?

Please tell that to a baker in Colorado.

[Michael P]

The rules are different from somebody's house, but that doesn't mean they can be arbitrary.

You make even Gaslight0 look halfway smart.

[Randal]

a) The only custom being solicited by social media is advertisers'.

b) Colorado's public accomodation rules aren't arbitrary...?

I wouldn't comment on other people's intelligence if I were you.

[EscherEnigma]

Unless your news flash reveals that social media sites are actually public squares somehow, I'm not sure why you think that's relevant to my repudiation of Volokh's thesis.

[Brett Bellmore]

It seems to me that social media sites currently occupy a sort of "sour spot" in law, where they're sufficiently subject to government regulation to be credibly threatened, while deemed sufficiently private that their response to those threats isn't considered state action.

I'd like to see a principled defense of the existence of this sour spot; I think that in order to be private enough to not be a state actor when acting at the state's urging, you need to be private enough to tell the state to go to hell, and not suffer for it.

And none of these platforms are that secure, though they certainly SHOULD be.

[Sarcastr0]

Credibly threatened to your eye. Actual countervailing evidence in of them not acting threatened otherwise.

You think there otta be a law. Because you value freedom less than having things your way.

But rather than go out and say that, you just make a bunch of assumptions such that freedom demands the law regulate the thing you want regulated.

[Randal]

It seems to me that social media sites currently occupy a sort of “sour spot” in law, where they’re sufficiently subject to government regulation to be credibly threatened, while deemed sufficiently private that their response to those threats isn’t considered state action.

What? Traditional media exists in this same "sour spot." You're attempting to turn all media into state action, sicko.

[EscherEnigma]

Bellmore, I'd like to remind you that I have you muted because your inability to understand that the 2013 SCOTUS decision on gay marriage happened after, and thus could not cause, New Mexico's 2003 non-discrimination law.

[Lee Moore]

On January 6, 2021, with the encouragement of President Donald Trump, a motley crew of "Stop the Steal" zealots stormed the U.S. Capitol, destroying lives and property.

My recollection is that the only lives destroyed on that occasion were destroyed by the Capitol Police.

[David Nieporent]

Recollect better.

[jimc5499]

Stop believing bullshit.

[Sam Bankman-Fried]

Stop the ste!

The last words of Ashtray Babbitt that will inspire a new generation of patriots!! Gee, I wonder what she meant by “ste”?? 😉

[David Nieporent]

It turns out I was mistaken: repeating it 742 times did finally make it funny.

[Aubrey LaVentana]

"they both overlook that the First Amendment protects citizens from government encroachment on freedom of speech and assembly; the First Amendment is mute on corporate suppression of free expression."

Agreed. My concern has always been government pressure on corporations. Installing agents of government in the platforms' offices, establishing communications channels to the corporations, issuing requests and even demands to suppress speech on the platforms, issuing security clearances to the corporations' officers, and paying the corporations for their efforts.
That the corporations were willing to comply is shameful but irrelevant.

The government acted to suppress speech, through the instruments of the corporations.

The government has the right to speak. But the actions here were not speech, but conduct.

[Randal]

issuing requests and even demands to suppress speech on the platforms

That one is speech, not conduct.

Assuming hypothetically that any of the other actions you named could happen, why should they be illegal? You think the government shouldn’t be allowed to communicate to corporations at all? That’s mad.

[AmosArch]

*SNORE* another hack attempts to gaslight the Jan 6th picnic into Kristalnallnacht 2.0 when the fact remains the only people killed (by other people) were Trump demonstrators attacked by the police no matter how many times you try to act like Trump supporters were slaughtering trillions of people. Pretty lame 'insurrection' if you ask me

[David Nieporent]

Ashley Babbitt was "attacked by the police" in much the same way that Japanese pilots were "attacked by the Navy" at Pearl Harbor.

[AmosArch]

The Japanese attacked Pearl Harbor with women on walking on foot?

[TwelveInchPianist]

Unarmed women.

I mean, I'm pretty hawkish on Pearl Harbor, but if the attack had been done by a bunch of unarmed women instead of Japanese planes with bombs and machine guns, I would have said that firing antiaircraft guns at them would have been excessive.

[Randal]

The capitol police fired anti-aircraft guns at Ashley Babbit?

[TwelveInchPianist]

No, just the normal kind. They could have just arrested her.

[Stephen Lathrop]

They could have just arrested her.

TwelveInchPianist — They could have just arrested the entire mob, except they couldn’t. They were too busy defending themselves, the Capitol, and the legislative branch. On J6 more gunfire, and gunfire sooner, would probably have been wiser law enforcement.

There is no reason why a mob attack on the legislature should not get the same prompt and forceful response that the Secret Service would apply to a mob attempt to force entry into the White House. In that case, I do not think many would be surprised by, or object to, prompt use of deadly force.

The Capitol and the Supreme Court building should be defended alike with the White House. Each is the seat of a branch of government. To violently attack any of them ought to be reckoned as levying war on the United States—on the basis of long-established law dating back to the trial of Aaron Burr.

To get a surprise about what is the constitutional meaning of, “to levy war against the United States,” read the decision in Ex Parte Bollman and Ex Parte Swartwout. Turns out that term in early 19th century context did not require warlike array, large numbers of conspirators, a foreign enemy, or any prospect of warlike success.

As defined by Chief Justice Marshall, to levy war was not to make war. To levy war required only a small number of conspirators, who intended violence, and took any overt steps at all to carry that violence into effect. J6 went far beyond that threshold.

That is why the wiser charge against Trump should have been treason. Publicly available evidence sufficient to satisfy probable cause has long been available. The re-written charge filed by Jack Smith strongly suggests more such evidence, and stronger evidence still to be presented, and supported by testimony from Trump administration witnesses undoubtedly in position to provide first-hand testimony.

I suppose the Supreme Court might have been chastened to meddle with a treason charge, given the Constitutional definition of the crime, which the justices are not empowered to redefine or immunize, as they have done with the statutory charges actually brought. The notion of criminal immunity for a president against a treason charge might have seemed to the justices a weightier burden than to create a novel immunity to lesser charges which were not Constitutionally defined.

Had Trump been charged initially with treason, I think the nation would now be headed into election day with Trump already tried, and either convicted or exonerated. Nobody knows now whether Trump’s desperation to avoid trial on his currently pending charges will goad more violence if he loses a close election.

Assuming hypothetically that happens, the judgment of history will likely be that a treason charge, tried to a verdict months ago, was the right charge, no matter how it turned out. Assuming hypothetically renewed violence does not happen, history will still recognize due process when the full range of available evidence has been given sharp focus, as the historical record will eventually do as thoroughly as a trial would have done.

By riveting the nation’s attention with a charge at once so dramatic, so imposing, and in light of the evidence which would be disclosed, so justifiable, prosecutors and the judicial process could have better prepared voters. The impending election—far more than typical elections—needed formal processes to help the electorate weigh properly how to cast their ballots.

What will happen presently has yet to be seen. The nation now risks existential trouble which could have been avoided. Better to have made more vigorous use of processes already established. Those were put in place to make our system work toward governance both wise and just. Resistance by Trump’s defenders to let such processes play out—resistance among both voters, and on the Supreme Court—shows that leaving questions of guilt or innocence aside, and considering only questions of politics and consequences, too many feared justice when they should have been demanding it.

[Dr. Ed 2]

The Japanese attacked Pearl Harbor with women on walking on foot?

Women walking on water as well.

[Dr. Ed 2]

David NoMind has sunk to a new nadar.

The Japanese A6M Zero had two 20 mm cannons and two .303 machine guns. Ashley Babbitt had???

[David Nieporent]

A mob.

[Brett Bellmore]

Fair. I consider Ashley Babbitt to be a suicide by cop. I've said that before: You step through a door with a cop on the other side pointing a gun at you and telling you to stop, you're a suicide.

That said, she is the only one of the deaths that day that is actually a violent death traceable to the events of that day. The rest were simply due to people not being rendered temporarily immortal by proximity to a political protest/riot.

[Sarcastr0]

1. The threshold being only deaths is not a good one.
2. There weren't that many capitol police. It doesn't take an actuary to see that the overdeaths number was notable.

[Brett Bellmore]

But it apparently does require looking at the actual causes of death to understand that not one of them died of violence that day; You had the one guy they pretended got beat to death with a fire extinguisher, who actually hadn't been hit by one, and died of natural causes. And you had some suicides in subsequent months conveniently attributed to January 6th.

Among the protesters, except for Babbitt, it was all natural causes. And, as I say, being in close proximity to a political protest or riot doesn't render people immortal, what a shocker.

[Sarcastr0]

So then what caused the overdeaths, Brett?

[TwelveInchPianist]

According to the coroners, natural causes and suicide, as Brett pointed out.

[Randal]

Pretty lame ‘insurrection’ if you ask me

You are correct, sir.

[Stephen Lathrop]

The OP calls for conditional repeal of Section 230. That will make everything worse. Do that, and the new game will be government monitoring of conditional compliance, as a requirement for a platform to continue using its business model. All the decisions will turn out dependent on which bureaucrats are in charge, and the decisions will change from time-to-time with the bureaucrats.

If Section 230 is to be repealed, it must be repealed unconditionally, to avoid creating government leverage over expressive freedom.

The OP is incoherent. It repeatedly critiques an advertising-driven publishing model on the internet, apparently without reflecting how legacy publishing enterprises ran on advertising driven business models, and still do. But I suppose Stanger might dispute me on that, arguing foolishly that internet platforms are not publishers, because Section 230 turned them into, "intermediaries," whatever those are.

No. The largest platforms on the internet are all publishers in fact, no matter what Section 230 has done to protect them from legal liability. Those platforms are the largest publishers the world has ever seen.

They do activities which define publishing: they assemble and curate audiences; they offer variable content which audience members are free to accept at pleasure; they solicit contributions, and sometimes pay for them; they monetize audience attention by selling to advertisers access to the audience; they organize the means to distribute content and advertising.

Those are definitional publishing activities. Other publishing business models exist. Book publishing remains a thing. But it is all but impossible to think of any business which does all those activities and is not a publisher.

And finally, reckon the market effects the platforms created. They made their money by ruinous competition with other publishers. Other kinds of business activity have adjusted to internet platforms, but mostly without suffering loss of business. If your competitive victims are publishers, then you must be practicing publishing.

[Krayt]

The OP calls for conditional repeal of Section 230.

I don’t go so far as to want to get rid of (or modify) 230, as policy it let the US companies vastly outstrip foreign competition. But it’s a policy. If we can get into it, we can decide to get out of it. For the right reason.

My complaint is using threats of getting rid of it to arm twist the companies to adopt censorship policies those twisting the arm desire. What is the problem she wishes to solve? Is it a lack of being brought to heel on censorship? Is it creating a target rich environment for lawsuits, and crushing retirement funds?

[Brett Bellmore]

My complaint is that Section 230 was thrown completely out of balance by treating that "or otherwise objectionable" as transforming a limited safe harbor for consensus moderation into complete editorial control. The courts let the platforms assert that absolutely ANYTHING they felt like suppressing was relevantly "otherwise objectionable", just because somebody at the platform objected to it.

It was not a reasonable reading of the law, not remotely what the legislature intended.

[Randal]

It was not a reasonable reading of the law, not remotely what the legislature intended.

Maybe that’s true, but it doesn’t matter. Complete editorial control was the inevitable outcome from the beginning… exactly because the government can’t / won’t become co-editor of social media. Nobody wants that, except maybe Nina Jankowicz.

[David Nieporent]

It is exactly what Congress intended.

[apedad]

" . . . and national social norms, the latter of which no longer exist."

Ah yes ... the good ol' days .... which NEVER existed.

I don't take anyone seriously when they bring up nostalgia as a factor.

[Stephen Lathrop]

apedad — There was no law to require private editing of everything before publishing it. The law had wisely decreed civil damages for false defamation of innocent third parties. The terms of that law varied from state to state, but also responded to a federal requirement to respect the 1A.

The private editing was a norm, adopted nearly universally to cope with state and federal laws and policies. But the laws did not require the private editing. Any publisher remained free to practice any style of editing it pleased, or to forgo editing altogether. Which some did, and continue to do today, even if they do not publish on the internet.

[DaveM]

“On January 6, 2021, with the encouragement of President Donald Trump, a motley crew of ‘Stop the Steal’ zealots stormed the U.S. Capitol, …”

When your very first sentence starts with a lie, you cannot possibly hope that any persuadable person is going to give you the grace to read any further.

The Left may very well have some good arguments on their side, but we’ll never know them. They want us to follow in their path, but then they burn their bridges behind them as they go. Good luck with that.

[Michael Ejercito]

They keep saying Trump encouraged the riot.

How, exactly, did he do that?

[jimc5499]

Orange man bad.

[David Nieporent]

How, exactly, did he do that?

Maybe you missed everything he and his cronies said between November 3, 2020 and January 6, 2021 about the election being stolen.

[David Nieporent]

The thing that makes you pathetic losers so dishonest is that if Trump had been telling the truth about that stuff, the insurrection might have been justified. Democrats forged ballots etc., the courts refused to review the evidence, and Congress and Mike Pence are just rubber stamping it? In that case, people would need to fight like hell to stop the steal!

Even if what Trump did didn't legally rise to the level of a crime because of the high standards of the 1A, of fucking course he encouraged it. Every single thing he said encouraged it.

[Brett Bellmore]

Maybe you miss that the actual break in was the work of the Proud Boys, under extensive surveillance for months prior, and if Trump had directed them to do anything of the sort, the government would have been able to prove it?

If anybody caused that break in, (Besides the Proud Boys, obviously.) it was the FBI, not Trump. THEY were the ones in continuous communications with the conspirators behind it, not him.

[Sarcastr0]

There was not a single break-in.

It was a mob.

Your FBI via Proud Boys story doesn't even align with the right wing version of events, it's all off your dome.

All to excuse that your party of choice supports an assault on our democracy.

Hell, given your particular flavor of 2020 trutherism, why not come out in favor of assault on a bunch of state supreme courts? They stole the election!

[MatthewSlyfield]

He exists.

[SimonP]

Leiter's piece on epistemic authority, while incomplete and ultimately veering to an underdeveloped and underexplained policy solution, was more interesting than whatever this claptrap is.

I take it that the "Journal of Free Speech Law," in promising expedited review and quick decisions on submissions, has a correspondingly lower editorial standard, when it comes to what they'll accept for publication. This introduction is replete with cliches and unexamined premises, promising only dull repetition of policy solutions already offered by others. I have zero interest in seeing where this piece goes from here.

Dreck, dreck, dreck.

[EscherEnigma]

I think it's hilarious that Volokh can so drastically understate Jan 6th, and the lot of you still get your panties in a twist because he didn't bend over backwards even more.

Snowflakes, the whole lot of you.

[EscherEnigma]

Sorry, my mistake. It was not Volokh that was bending backwards, it was Stanger.

[reasonable]

"[T]he First Amendment is mute on corporate suppression of free expression," because corporations were originally for limited times, for specific purposes, for a public good. As corporations now touch our daily lives in myriad ways, without the original constraints, the balance of power has shifted heavily in their favor. My guess as to a way forward would be to amend Section 230 to include something akin to free speech rights and neutral moderation in exchange for the broad protection therein granted.

[Brett Bellmore]

A lot of people miss that: The corporations of the founding era were similar to today's port authorities: Nominally private bodies invested with some sovereign power for a specific purpose. The founders neither anticipated nor intended that all commerce above the level of a child's lemonade stand would be done through corporations.

That only came about because the government's own tort system made doing things any other way financially perilous.

[apedad]

"The founders neither anticipated nor intended that all commerce above the level of a child’s lemonade stand would be done through corporations."

Really?

In the period from the 1790s to the 1860s, the United States led the world in modern corporate development. Recent research provides the first comprehensive look at corporate development, revealing that U.S. states from 1790 to 1860 chartered 22,419 business corporations under special legislative acts and several thousand more under general incorporation laws that were introduced mostly in the 1840s and 1850s.1 These totals far exceed the number of corporations created in any other country (most likely in all other countries combined) during that time. The United States thus became what might be called the first corporation nation."

https://www.amacad.org/publication/daedalus/american-corporation#A1

[Brett Bellmore]

So, the vast majority were chartered under special legislative acts. I'd have to see what they were doing; My understanding is that they were special purpose corporations, not ordinary businesses.

[reasonable]

Yes, there were corporations for specific purposes, but, taking the New York times as an example, it was founded in 1851 but not incorporated as the New York Times Company until 1896, some 45 years later, or 106 years after the ratification of the constitution. I would put forth that an early railroad or bridge corporation had no where near the interaction with free speech as a newspaper.

[Stephen Lathrop]

apedad — Awkward time frame to qualify that as response to questions about what the founders intended. Too much of the corporate action happened in the latter decades of that over-long time interval.

[Sarcastr0]

The Founders did not assume nothing would change after 1790.

The Constitution is flexible to handle all sorts of stuff they didn't anticipate.

YOU are not, but that's note the Constitution's fault.

[David Nieporent]

My guess as to a way forward would be to amend Section 230 to include something akin to free speech rights and neutral moderation in exchange for the broad protection therein granted.

That is not "amending" Section 230; it is repealing it.

[Alan Vanneman]

"In response, Twitter, YouTube, and Facebook took the unprecedented step of deplatforming a freely elected U.S. president."

Since when do private actors have to rely on "precedent" to justify their actions? Also, calling Trump a "freely elected U.S. president" is a bit rich, since he was "elected" by the Electoral College. The only non "freely elected" U.S. president was Jerry Ford. If Trump had been, in effect, a "Jerry Ford", would that have made a difference? Hey, and while I'm at it, why do "freely elected U.S. presidents" have rights that, apparently, other folks don't have? Gee, Professor Volokh, you wouldn't be engaging in some kind of deceptive rhetoric, would you? I sure hope not.

[David Nieporent]

Gee, Professor Volokh, you wouldn’t be engaging in some kind of deceptive rhetoric, would you? I sure hope not.

Why is it that some people are too dumb to tell when a person is quoting someone vs. speaking his own words?

[EscherEnigma]

Hrm, that's fair. I will amend my above statement about Volokh bending backwards to avoid offending the snowflakes.